Substantive due process - Protecting economic interests - “Redistribution”

• Why, in the period from Reconstruction through the New Deal, did the SCt focus so much on freedom of contract as the central liberty protected by the 14^th Amendment?

Lochner V. New York – Time to make the donuts – No maximum hours for bakers

• Peckham 1905. Facts. This case involved a NY law that limited the hours a bakery employee could work to 10 per day and 60 per week.

• Holding. SCt struck down this law as an abridgment of “liberty of contract,” and therefore a violation of the Due Process Clause of the 14^th Amendment

• State offered two defenses of statute. (1) It was a valid labor law. (2) It protected the health and safety of the workers.

• Not valid labor law. SCt quickly rejected the labor law justification for the statute. The police power extended only to protection of the “public welfare.” The readjustment of bargaining power between bakery employees and their employers, the SCt implied, was not of sufficiently public (as opposed to private) concern, especially in view of the law’s infringement of the “liberty of contract.” (The SCt suggested that if bakers were not as intelligent as other workers, or for some reason needed unusual protection, the statute might be valid as a labor law; but the SCt found no reason to believe that bakers as a class needed such special protection.

• Not safety or health measure. Nor did the SCt accept the “health and safety” rationale advanced for the statute. The SCt did not find bakers to be an especially endangered group (as it had found miners to be in a case a few years previously). And long working hours did not affect the public health and safety by making the baked goods less fit to eat. In any event, the SCt indicated, any interest the state had in guarding the wholesomeness of the baked goods could be satisfied by measures which interfered less with freedom of contract (e.g. inspecting premises, requiring that washrooms be furnished, etc.)

• Legislature’s motives suspected. Majority clearly disbelieved that the legislature had in fact acted in part for safety and health reasons. The law’s natural effect was to regulate labor conditions, not to protect anyone’s health and safety. SCt thus implied that only the legislature’s actual motive, not a hypothetical motive, would be looked to in evaluating a statute subjected to substantive due process attack.

• No deference to legislative fact finding. Another key element of the SCt’s holding was its refusal to defer to legislative findings of fact. SCt insisted on reaching its own conclusions on the factual issue of whether the health and safety of bakers, or of the bread-eating public, needed special protection. For instance, SCt stated that “in our judgment it is not possible in fact to discover the connection between the number of hours a baker may work in the bakery and the healthful quality of the bread made by the workman.”

• Dissent

• Harlan. Argued that there was enough evidence that the statute would promote the health and safety of bakers that the legislature’s judgment on this issue should have been accepted.

• Holmes. Contended that SCt had no right to impose its own views about correct economic theory on legislatures. He made one of the most famous remarks in constitutional law: “The 14^th Amendment does not enact Mr. Herbert Spencer’s social statics,” a reference to a then popular “social Darwinism”/”laissez faire” theory. Holmes went on to say that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens of the state or of laissez faire.” “Liberty,” as the term is used in the 14^th Amendment, should be found to be violated only when “a rational and fair man necessarily would admit that the statute would infringe fundamental principles as they had been understood by the traditions of our people and our law.” By that test, the statute was valid.